As of Aug.1, 2003, the Client Assistance
Office (CAO) began initial screening of all inquiries
and complaints about members of the Oregon State Bar.
According to the CAO 2004 Annual Report to the Oregon
Supreme Court, the CAO handled 3,659 inquiries in 2004
(Jan. 1 to Dec. 31). Of the inquiries received during
that time, 11.86 percent pertained to neglect of a
legal matter, and 9.33 percent concerned communication
issues. These two areas were the most common source
of complaints received by CAO.

Until Jan. 1, 2005, Oregon had no explicit
rule addressing the duty of communication. With the
Oregon Supreme Court’s adoption of the Oregon Rules
of Professional Conduct (Oregon RPC), now we do.

WHAT NEW RULE?Oregon RPC 1.4 provides:

(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly
comply with reasonable requests for information.

(b) A lawyer shall explain a matter to
the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.

This rule is the pre-2002 ABA Model Rule
1.4.1 ‘Reasonable’ or ‘reasonably’ is defined
as "the conduct of a reasonably prudent and competent
lawyer." Oregon RPC 1.0(k). While not adopted
by the Oregon Supreme Court, the official comment to
the pre-2002 version of ABA Model Rule 1.4 provides
additional guidance in understanding the duty of communication:

The client should have sufficient information
to participate intelligently in decisions concerning
the objectives of the representation and the means
by which they are to be pursued, to the extent the
client is willing and able to do so….Even when a client
delegates authority to the lawyer, the client should
be kept advised of the status of the matter….The guiding
principle is that the lawyer should fulfill reasonable
client expectations for information consistent with
the duty to act in the client’s best interests, and
the client’s overall requirements as to the character
of representation….Where many routine matters are involved,
a system of limited or occasional reporting may be
arranged with the client.

Although Oregon had no explicit rule
regarding communication until Jan. 1, 2005, the Oregon
Supreme Court has long acknowledged that lawyers have
a duty to communicate with their clients. See e.g.,
In re Chandler, 306 Or 422, 760 P2d 243 (1988)
(failing to communicate with client for three years,
closing active file and misplacing thereafter, and
failing to respond to requests for the file constitute
neglect).

The duty to communicate does not require
that lawyers respond to every single phone call from
a client. In re Walker, 293 Or 297, 647 P.2d
468 (1982) (lawyer not communicating with client as
often as client requested did not violate disciplinary
rules where lawyer kept client adequately informed
of progress of client’s matters; client made numerous
phone calls to lawyer, sometimes three times a day,
to check status of two cases and lawyer told client
he would contact him when he had something to tell
him). Similarly, other jurisdictions operating under
RPC 1.4 have not interpreted the rule to require an
immediate response to every call or request by a client. See
e.g., In re Schoenemann, 777 A.2d 259 (D.C. 2001)
(failing to return client’s telephone calls for three
weeks did not violate Rule 1.4 where client admitted
she and lawyer spoke monthly and lawyer regularly informed
her of his efforts to reopen her civil rights case;
lawyer need not communicate as often as client would
like; monthly contact not unreasonable given the circumstances).

Although the Oregon Supreme Court has
discussed the duty to communicate in the context of
patterns of neglect or allegations of misrepresentation,
other jurisdictions’ interpretation and implementation
of RPC 1.4 suggest that the guiding principles of communication
under RPC 1.4 are similar to those found in Oregon
law. For example, the failure to inform a client about
important dates or the status of the case will result
in discipline. Cf.In re Bourcier, 325
Or 429, 939 P2d 604 (1997) (lawyer neglected client’s
criminal appeal where lawyer filed the necessary documents
with the appellate court, but never communicated with
the client regarding the status of the appeal); In
re Barnes, 691 NE2d 1225 (Ind. 1998) (bankruptcy
lawyer violated Rule 1.4 by failing to notify client
of deadline for submitting Chapter 13 plan and of the
meeting of creditors, failing to meet the deadlines
or appear for the hearing resulting in the case being
dismissed, and failing to respond to client’s requests
for information).

Lying to clients or concealing information
about what activity has occurred on their cases will
also result in discipline. Cf.In re McKee,
316 Or 114, 849 P2d 509 (1993) (lawyer violated disciplinary
rules by failing to disclose to client that litigation
had been dismissed, that counterclaims had been filed,
that settlement negotiations had occurred and that
trial dates were set); In re Hagedorn, 725 NE2d
397 (Ind. 2000) (lawyer violated Rule 1.4 by failing
to take steps to complete adoption for client and misleading
client about status of proceedings).

Thus, while Oregon RPC 1.4 is new, the
underlying precepts are not.

ANOTHER NEW RULEOregon RPC 1.4 dovetails into Oregon
RPC 1.2(a) which, while similar to former DR 7-101(A)
and (B), also has no direct counterpart in the prior
Oregon Code. Oregon RPC 1.2(a) provides:

Subject to paragraphs (b) and (c), a
lawyer shall abide by a client’s decisions concerning
the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means
by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly
authorized to carry out the representation. A lawyer
shall abide by a client’s decision whether to settle
a matter. In a criminal case, the lawyer shall abide
by the client’s decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.

Again, while the rule is new, the concepts
are not. Oregon RPC 1.2(a) is a more explicit reminder
of what Oregon law has long recognized: that the lawyer-client
relationship is a fiduciary relationship based upon
the principles of agency law. See e.g., OSB
Legal Ethics Op. No. 1991-26 and 1991-33. Thus, while
lawyers may exercise professional judgment to make
decisions concerning strategy, clients make the ultimate
decisions which affect their substantive rights, such
as whether and for how much to settle their cases.
Further, Oregon RPC 1.2(a) reminds lawyers that communication
with clients is the foundation for carrying out their
responsibilities under this rule.

HOW MUCH COMMUNICATION IS ENOUGH?I recently attended an OSB CLE seminar
entitled How to Keep Clients Happy. Gary Richards,
the speaker, said "to meet an expectation, you
must set an expectation." It is common sense,
practical advice that sounds easier than it may be
to implement. Setting expectations starts with not
assuming that your client knows what you know, whether
it is about the law, your office systems and practices,
or that "right away" means in two weeks.

Richards presented many practical suggestions
to help lawyers bridge communication gaps with clients.
For example, at the outset of representation, give
clients a broad outline of the steps involved in their
cases, what the clients are expected to do, what the
lawyer will do, and a conservative time frame for completion.
This information might be covered in a retainer agreement,
a letter of engagement or in a simple handout. Always
have an express fee agreement, preferably in writing.
Provide clients a copy of all correspondence, both
incoming and outgoing. Establish a system for returning
phone calls, tell clients what that system is and stick
to it. Do not set expectations that cannot realistically
be met. Finally, rather than assuming clients understand
what you are saying because you have waxed eloquent
for the last 20 minutes, ask whether they understand,
and test that understanding. Remember George Bernard
Shaw’s wise words, "The problem with communication
is the illusion it has occurred."

Endnote

1. In 2002, the ABA amended Rule 1.4
to read:

(a) A lawyer shall:

(1) promptly inform the client of any
decision or circumstance with respect to which the
client’s informed consent, as defined in Rule 1.0(e),
is required by these Rules;

(2) reasonably consult with the client
about the means by which the client’s objectives are
to be accomplished;

(3) keep the client reasonably informed
about the status of the matter;

(4) promptly comply with reasonable requests
for information; and

(5) consult with the client about any
relevant limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other
law.

(b) A lawyer shall explain a matter to
the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.

ABOUT THE AUTHORHelen Hierschbiel is assistant general
counsel in the OSB Client Assistance Office. She can
be reached at (503) 620-0222, or toll-free in Oregon
at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.